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United States District Court, N.D. New York

March 22, 2004.

ETHEL COLON, Plaintiff,

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2


I. Introduction

  Ethel Colon alleges that bilateral carpal tunnel syndrome and arthritis in her neck and knees have disabled her, and challenges the denial of disability benefits by the Commissioner of Social Security. Having reviewed the administrative record, the court concludes that the Commissioner's decision was based on substantial evidence, and affirms.

  II. Procedural History

  After Colon filed for disability benefits in August 1997, her application was denied, and a hearing was conducted by Administrative Law Judge Joachim Volhard (ALJ). A vocational expert (VE), William Armani, testified at a supplemental hearing. In January 1999, the ALJ issued a decision denying benefits which became the Commissioner's final determination when the Appeals Council denied review on February 8, 2000.

  On April 10, 2000, Colon brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the Commissioner's final determination. The Commissioner then filed an answer and certified administrative transcript, Colon filed a brief, and the Commissioner responded. Page 3

  III. Contentions

  Colon contends that the Commissioner's decision is unsupported by substantial evidence, and erroneous as a matter of law. Specifically, she maintains that contrary to the testimony of the vocational expert: (i) she is physically incapable of working as a video surveillance monitor; (ii) such positions do not exist in the regional economy; and (iii) 100 such positions do not constitute a "significant number" in the regional economy. She also argues that the ALJ erred when he failed to conclude that she was "disabled" due to "significant erosion" of her "occupational base."

  The Commissioner counters that substantial evidence supports the ALJ's decision because he properly relied on the VE, including testimony about the existence of a significant number of jobs in the national economy.

  IV. Facts

  Colon was forty-seven years old at the time of the ALJ's decision, and has an eleventh-grade education. (Tr. 64, 84). From 1988 to July 21, 1997,*fn1 she worked as a parts assembler and welder at a medical equipment manufacturing facility. (Tr. 84). The job required her to stand Page 4 for about eight hours, walk for one hour, frequently bend, constantly reach, and frequently lift, push, and pull boxes weighing approximately ten pounds. (Tr. 85).

  In her SSA disability report, she asserted disability because of "burrs in the neck, arthritis in the neck . . . carp[al] tunnel in both hands [and] arthritis in [her] knees." (Tr. 80-85). She complained of daily fatigue and wrist and neck pain. Later, she stated that she needed the assistance of her husband and daughter while shopping, cooking, and cleaning. (Tr. 90-94). She also stated that she experienced wrist pain when writing, pushing, or pulling, that she needed to change positions frequently due to constant neck pain, and that her symptoms had progressively deteriorated. (Tr. 93, 96-97).

  A. Medical Evidence

  1. Michael Tan. M.D. (orthopedic surgeon)

  Dr. Tan, Colon's treating orthopedic surgeon, diagnosed her with frozen shoulder syndrome and early carpal tunnel syndrome in 1991. (Tr. 200). In 1994, he performed carpal tunnel release on her hands. (Tr. 92, 201). In 1996, he diagnosed her with degenerative disc disease of the cervical spine, and continued his diagnosis of carpal tunnel syndrome. Page 5 (Tr. 190).

  In 1998, Dr. Tan completed a medical assessment report, and estimated that Colon could lift and carry a maximum of twenty pounds, and ten pounds occasionally or frequently. (Tr. 178). He indicated that the impairments did not affect her ability to stand, walk, and sit. (Tr. 179). He found that she could frequently climb and balance, and occasionally stoop, crouch, and kneel. (Tr. 179). However, he found she could not crawl, since "forward flexion is markedly affected by neck discomfort." (Tr. 179).

  Noting neck stiffness extending into the base of the neck, shoulders and arms, Dr. Tan found that Colon's reaching, handling, feeling, and pushing/pulling functions were affected by her recurring symptoms of bilateral carpal tunnel, and diagnostic evidence of cervical disc degeneration. (Tr. 180-81). He also found that her impairments caused environmental restrictions, including temperature extremes, humidity, and vibration. (Tr. 180). He opined that Colon "cannot perform her usual highly repetitive assembly work, which in addition requires repetitive neck, head and eye movements." (Tr. 181). Page 6

  2. Joel Amidon, D. O. (osteopath, Rome Medical Group)

  In October 1997, the Rome Medical Group assessed Colon with degenerative joint disease of the cervical spine and post-release carpal tunnel syndrome. (Tr. 98-101). A month later, Dr. Amidon, an osteopath in the Group, indicated that Colon had been complaining of "severe neck pain, upper back pain, and pain that goes into her hands bilaterally," symptoms which were exacerbated when she turned her head, moved, or sneezed. (Tr. 160). An MRI was negative, and he recommended "vigorous physical therapy" to treat her symptoms, caused "probably [by] some ligamentous strain." (Tr. 157). A Social Services assessment indicated that Colon was able to lift, carry, push/pull a maximum often pounds, stand/walk for two hours a day, and sit up to six hours. She also had problems with bending and manipulation, could not hold a pen, and had environmental limitations. (Tr. 164-65).

  In March 1998, Dr. Amidon noted that Colon's neck pain had "remarkably improved," and that she had tenderness along the left cervical spine, and severe spasm of the neck along the trapezius muscle. (Tr. 148). He noted that her pain was improving with medication. (Tr. 148).

  In May 1998, Dr. Amidon assessed Colon's work-related abilities, Page 7 and indicated that she could only occasionally lift and carry a maximum of five pounds, as lifting more would cause strain in her neck, shoulder, and arms. (Tr. 144-47). He found that she could not carry any weight frequently because repetitive lifting would exacerbate her symptoms. (Tr. 144). He further found that Colon could stand and/or walk for a total of four hours, and that she could sit for another four hours, each at intervals of twenty to thirty minutes without interruption. (Tr. 145). The doctor noted that prolonged standing led to neck and upper back spasm, and that Colon should stand and move frequently. (Tr. 145).

  As compared to Dr. Tan, Dr. Amidon found that Colon was more limited in her postural activities: she could never climb, balance, or crawl, and could only occasionally stoop, crouch, and kneel. (Tr. 145). He noted that her impairments affected her ability to reach, handle, feel, and push/pull. (Tr. 146; see 178-81). He noted several environmental limitations related to heights, moving machinery, temperature extremes, dust, fumes, humidity, and vibration. (Tr. 146). Finally, he opined that Colon could return to work by August 1, 1998, but deferred that decision to Dr. Tan. (Tr. 147).

  Finally, Colon's attorney asked Dr. Amidon to comment on two prior Page 8 Residual Functional Capacity (RFC) assessments provided by Social Security doctors, (see Tr. 108-28, 129-32). The physical RFC found that Colon could occasionally lift up to twenty pounds, frequently lift ten pounds, stand, walk, and sit for six hours a day, but Dr. Amidon opined that the assessment might be incorrect in light of her recurrent need for therapy. (Tr. 224-25). Dr. Amidon stated, however, that the assessment was essentially accurate, with the exception that Colon might need additional therapy "if she participates for a full days (sic) duties." (Tr. 224). He agreed with the mental RFC assessment that Colon had mild depression. (Tr. 224).

  3. Residual Functional Capacity Assessments

  In December 1997, Dr. Weingartner, a consulting physician, provided the physical RFC assessment, and found that Colon could occasionally lift twenty pounds, frequently lift ten pounds, and could stand, walk, and sit for six hours each. (Tr. 122). He found that she had no postural, visual, communicative, environmental, or manipulative limitations, with the exception of "no repetitive fingering." (Tr. 124-25). He concluded that Colon was not as restricted as her treating sources indicated because there were no concrete abnormal symptoms in support Page 9 of her complaints. (Tr. 127). An SSA medical consultant agreed with Dr. Weingartner's assessment. (Tr. 129). A psychiatric evaluation revealed that Colon suffered from mild depression, and a mental RFC assessment confirmed that diagnosis. (Tr. 105-19).

  4. The Administrative Hearing

  The ALJ found that Colon's "allegations of a limited ability to lift, carry, push and pull and a need to change positions frequently [were] supported by the medical record." (Tr. 10). He determined that her symptoms significantly limited her RFC, and sought assistance from a vocational expert. (Tr. 10, 40-53).

  Mr. Armani, the VE, classified Colon's past relevant work as unskilled light work, requiring the lifting of up to ten-twelve pound weights and long periods of standing. (Tr. 44-45). The ALJ then asked the VE whether there were any available jobs, assuming an individual with Colon's past relevant work, age, and education, and with the physical restrictions contained in Dr. Amidon's*fn2 medical assessment report. (Tr. 48; see Tr. 144-47).

  The VE testified that such a person could not return to her past Page 10 relevant work as a parts assembler, but could perform the job of security system monitor, an unskilled sedentary occupation. (Tr. 48-49). He stated that there were approximately 100,000 such jobs nationally, and more than 100 regionally. (Tr. 49). He also testified that the position would require no significant lifting, and that paperwork would be limited to filling out a few documents at the end of the shift, such as incident reports. (Tr. 49). Based on his observations and notes and on the job's description in the Department of Labor's Dictionary of Occupational Titles (DOT),*fn3 the VE testified that such jobs were available in public buildings (including colleges), parking garages, and stores. (Tr. 50).

  In a hypothetical, Colon's attorney asked the VE whether a person with Colon's limitations, i.e. someone who was able to stand/walk for four hours and sit for four hours with twenty to thirty minute interruptions each, could work as a surveillance system monitor. (Tr. 51-52). The VE testified that the position would accommodate such limitations because the individual would be able to stand and sit at will and still see the video monitors. (Tr. 52-53). The VE stated that surveillance system monitors usually observed four to five screens from a convenient ten-foot distance, Page 11 and were not required to repetitively move their head or eyes. (Tr. 52-53).

  V. Discussion

  A. Standard and Scope of Review

  When reviewing the Commissioner's final decision, the court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Although the Commissioner is ultimately responsible for determining a claimant's eligibility, the actual disability determination is made by an ALJ, and that decision is subject to judicial review on appeal. A court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if it appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

  A court's factual review of the Commissioner's decision is limited to the determination of whether substantial evidence in the record supports Page 12 the decision. 42 U.S.C. § 405(g); see Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Williams ex rel Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see a/so Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

  The court has authority to reverse with or without remand. Page 13 42 U.S.C. § 405(g). Remand is appropriate where there are gaps in the record or further development of the evidence is needed. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Cutler v. Weinberger, 516 F.2d 1282, 1287 (2d Cir. 1975) (remand to permit claimant to produce further evidence). Reversal is appropriate, however, when there is "persuasive proof of disability" in the record and remand for further evidentiary development would not serve any purpose. Parker, 626 F.2d at 235; Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992); Carroll v. Sec'y of HHS, 705 F.2d 638, 644 (2d Cir. 1983) (reversal without remand for additional evidence particularly appropriate where payment of benefits already delayed for four years and remand would likely result in further lengthening the "painfully slow process" of determining disability).

  B. Five-Step Disability Determination

  In the Social Security Disability Insurance and Supplemental Security Income context, the definition of "disabled" is the same. A plaintiff seeking SSDI or SSI is disabled if she can establish that she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last Page 14 for a continuous period of not less than twelve months. . . ." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A)*fn4 (emphasis added).

  The Commissioner uses a five-step process to evaluate SSDI and SSI disability claims. See 20 C.F.R. § 404.1520, 416.920. Step One requires the ALJ to determine whether the claimant is presently engaging in substantial gainful activity (SGA). 20 C.F.R. § 404.1520(b), 416.920(b). If so, she is not considered disabled. If not, Step Two requires the ALJ to determine whether the claimant has a severe impairment. 20 C.F.R. § 404.1520(c), 416.920(c). If the claimant is found to suffer from a severe impairment, Step Three requires the ALJ to determine whether the claimant's impairment meets or equals an impairment listed in 20 C.F.R. Part 404, Subpart P., Appendix 1, §§ 404.1520(d), 416.920(d). If the impairment meets or equals a listed Page 15 impairment, the claimant is presumptively disabled. Ferraris, 728 F.2d at 584. If the claimant is not presumptively disabled, Step Four requires the ALJ to consider whether the claimant's RFC precludes the performance of her past relevant work. 20 C.F.R. § 404.1520(e), 416.920(e). At Step Five, the ALJ determines whether the claimant can do any other work. 20 C.F.R. § 404.1520(f), 416.920(f).

  The claimant has the burden of showing that she cannot perform past relevant work. Ferraris, 728 F.2d at 584. However, once she has met that burden, the ALJ can deny benefits only by showing, with specific reference to medical evidence, that the she can perform some less demanding work. See White v. Sec'y of HHS, 910 F.2d 64, 65 (2d Cir. 1990); Ferraris, 728 F.2d at 584. In making this showing, the ALJ must consider the claimant's RFC, age, education, past work experience, and transferability of skills, to determine if the she can perform other work existing in the national economy. §§ 404.1520(f), 416.920(f); see New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).

  In this case, the ALJ found that Colon satisfied Step One because she had networked since July 21, 1997. (Tr. 12). In Step Two, the ALJ determined that she suffered from severe impairments, including cervical Page 16 arthritis and bilateral carpal tunnel syndrome status post carpal tunnel syndrome release surgery. (Tr. 12). In Step Three, the ALJ determined that her impairments failed to meet or equal a combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P., Regulation No. 4. (Tr. 12). In Step Four, the ALJ determined that Colon did not have the RFC to perform her past relevant work as an assembler. (Tr. 12). In Step Five, the ALJ found that Colon possessed the RFC to work as a surveillance system monitor, as supported by the evidence in the administrative record and the testimony of the VE. Consequently, he found Colon not disabled and denied benefits. (Tr. 12).

  C. Substantial Evidence

  1. Vocational Expert Testimony

  Colon erroneously argues that the ALJ's decision is unsupported by substantial evidence. When a claimant's ability to perform a full range of a particular category of work is limited, or where the transferability of her work skills to other jobs are at issue, the ALJ may use the services of a vocational expert. See 20 C.F.R. § 404.1566(e), 416.966(e); see Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986) (holding that the Commissioner can satisfy her burden of showing that jobs exist nationally Page 17 or regionally by introducing vocational expert testimony). The vocational expert may testify as to the existence of jobs in the national economy, as well as to the claimant's ability to perform any of those jobs, given her functional limitations. See Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir. 1988); Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983). In determining whether such jobs exist, a VE may rely on information available from governmental and other publications, such as the DOT. See 20 C.F.R. § 404.1566(d), 416.966(d).

  A vocational expert's opinion is useful when the hypothetical questions posed reflect the capabilities of the claimant. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981); Bosmond v. Apfel, No. 97 Civ. 4109, 1998 WL 851508, at *8 (S.D.N.Y. Dec. 8, 1998). The ALJ is responsible for determining the claimant's capabilities based on all the evidence, Dumas, 712 F.2d at 1554, and the hypothetical question(s) must present the full extent of the claimant's impairments to provide a sound basis for the expert's testimony. See De Leon v. Sec'y of Human Services, 734 F.2d 930, 936 (2d Cir. 1984); Lugo v. Chater, 932 F. Supp. 497, 503-04 (S.D.N.Y. 1996). The Second Circuit has stated that there must be "substantial record evidence to support the assumption upon Page 18 which the vocational expert based his opinion." Dumas, 712 F.2d at 1554. See also Aubeuf, 649 F.2d at 114; Renna v. Barnhart, 02-CV-765, 2003 WL 21005281, at *3 (E.D.N.Y. May 3, 2003) (citing Dumas, 712 F.2d at 1554).

  Here, Colon first claims that contrary to the VE opinion upon which the ALJ relied, she is not physically capable of performing the job of surveillance system monitor. She claims that the position is "much more physically demanding than indicated in the testimony of the vocational expert." PI. Br. at 8. She further contends that the VE "seemingly ignored the findings of Dr. Amidon." PI. Br. at 9.

  The ALJ, having determined that Colon's impairments "significantly limit[ed] her residual functional capacity," posed a hypothetical question to the VE, which included Colon's age, education, and past experience. (Tr. 48). The ALJ further instructed the VE to consider Colon's physical impairments and functional limitations, as reflected in Dr. Amidon's report, and gave the VE a copy of the report. (Tr. 46, 48, 144-47). The report included Colon's limited ability to lift and carry a maximum weight of five pounds, her ability to stand/walk and sit for four hours each for intervals of twenty to thirty minutes each, her need to shift positions frequently, and Page 19 her postural, physical, and environmental limitations.

  After taking into account the ALJ's hypothetical and the limitations contained in Dr. Amidon's report, the VE testified that while Colon could not perform her past relevant work as a parts assembler, she could perform the job of surveillance system monitor. (Tr. 48). The VE further testified that such a job would require minimal lifting, almost no paperwork, would accommodate someone requiring to stand every twenty to thirty minutes, and would involve looking at no more than five monitors. (Tr. 49-53). The VE's determination specifically relied on the DOT job definition. (Tr. 50-51).

  As mentioned, the DOT is a reliable official source of job information, and Colon's implication that the VE may have misunderstood the requirements of the position has no support in the record. Accordingly, this court finds that the ALJ properly retained and relied on the testimony of a vocational expert, and provided the VE with the full extent of Colon's impairments so as to allow the expert to base his opinion on "substantial record evidence." See Dumas, 712 F.2d at 1554.

  2. "Significant Number" of Jobs — Erosion of Occupational Base

  Colon's second and third contentions are that contrary to the VE's Page 20 opinion, surveillance system monitor jobs do not exist in the regional economy, and even if they did, one hundred such jobs do not constitute a "significant number." Pl. Br. at 12-13. The proposition that jobs do not exist in the regional economy has no legal merit. As noted, a plaintiff seeking disability benefits must establish that she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical . . . impairment. . . ." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A) (emphasis added). In addition, a claimant's


physical or mental impairment or impairments [must be] of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for h[er], or whether [s]he would be hired if [s]he applied for work.
42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (emphasis added).

  Furthermore,"work exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which [the claimant is] able to meet with [her] physical or mental abilities and vocational qualifications." 20 C.F.R. § 404.1566(b), 416.966(b). Finally, according to the same regulations, a claimant's Page 21 inability to obtain such work, the unavailability of work in the claimant's local area, or the unavailability of job openings, among others, do not constitute grounds for a disability finding. See 20 C.F.R. § 404.1566(c), 416.966(c).

  The VE testified that there were approximately 100,000 such jobs nationally, and 100 regionally. (Tr. 49). In his decision denying benefits, the ALJ relied on the national job information. (Tr. 11, 12). Although Colon argues that those jobs are unavailable in the regional economy, the truth of that assertion is irrelevant because it fails to consider the proper legal standard.

  Next, Colon contends that the Commissioner has failed to meet her burden of proof because surveillance system monitor jobs do not exist in "significant numbers" in the national economy. PI. Br. at 13-16. She argues that according to Social Security Ruling 96-9p (SSR 96-9p), the ALJ should have considered, in light of her impairments, whether there had been a "significant erosion" of the "occupational base" available to her. PI. Br. at 13-16; see SSR 96-9p.

  In Kuleszo v. Barnhart, 232 F. Supp.2d 44, 55 (W.D.N.Y. 2002), the District Court intimated that the availability of a single sedentary Page 22 occupation might constitute per se support for a disability determination because the full range of sedentary work has been significantly eroded. This court is persuaded, however, that the regulations dictate a contrary conclusion.

  As the regulations and SSR 96-9p point out, "`[s]edentary work' represents a significantly restricted range of work, and individuals with a maximum sustained work capability limited to sedentary work have very serious functional limitations." 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(4); see SSR 96-9p. Where an individual is unable to perform the full range of sedentary work, her occupational base will be eroded by additional limitations or restrictions on her exertional and non-exertional capacities.*fn5 SSR 96-9p. According to the Ruling, if any of a claimant's capacities are limited or restricted, her occupational base would erode significantly. Id. Thus, according to the Ruling, "a finding of `disabled' usually applies when the full range of sedentary work is significantly eroded." Id. Page 23

  Colon argues that the ALJ should have applied the guidelines in SSR 96-9p. She contends that application of those guidelines would mandate a disability determination because several of her exertional and non-exertional capacities were limited and/or restricted. Specifically, she claims that the ALJ should have found that her occupational base was seriously eroded by her: (1) inability to carry more than five pounds; (2) inability to sit and stand for four hours each (as well as to alternate both); (3) need to frequently change positions; and (4) postural, manipulative, and environmental restrictions. Therefore, she maintains that the ALJ should have found her "disabled" as a matter of law. PI. Br. at 13-14.

  To the contrary, SSR 96-9p specifically emphasizes that "a finding that an individual has the ability to do less than a full range of sedentary work does not necessarily equate with a decision of `disabled.'" SSR 96-9p. Furthermore, the "mere inability to perform substantially all sedentary unskilled occupations does not equate with a finding of disability. There may be . . . jobs that exist in significant numbers, that an individual may still be able to perform even with a sedentary occupational base that has been eroded." Id.

  The significant erosion of one's occupational base neither ends the Page 24 inquiry, nor mandates a finding of disability. SSR 96-9p appears to function as general supplemental guidance for Social Security adjudicators in their decision-making process. It also directs the use of additional vocational resources, such as vocational experts, when "an individual has been found to have a limited ability in one or more . . . basic work activities." SSR 96-9p.

  The ALJ was not required to make a determination of disability based on the erosion of Colon's occupational base and properly deferred to the VE the determination of availability of jobs within the category of sedentary work. The purpose of the VE's testimony was to determine whether Colon was able to perform any work despite her serious physical impairments. The availability of only one sedentary occupation, i.e. surveillance system monitor, although an indicium that Colon's full range was significantly eroded, did not mandate a finding that she was disabled. Such a finding would be in contravention of clear statutory language requiring that a claimant be unable to engage in any kind of gainful employment, available nationally or regionally. See 42 U.S.C. § 423(d)(1)(A), 423(d)(2)(A), 1382c(a)(3)(A), 1382c(a)(3)(B).

  After carefully reviewing the entire record, and for the reasons Page 25 stated, the Commissioner's denial of benefits was based on substantial evidence and not erroneous as a matter of law. Accordingly, the ALJ's decision is affirmed.

  WHEREFORE, for the foregoing reasons, it is hereby

  ORDERED, that the decision denying disability benefits is

  AFFIRMED; and it is further

  ORDERED that the Clerk of the Court serve a copy of this Order upon the parties by regular mail.

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